IN THE COURT OF APPEALS OF IOWA
No. 23-1349 Filed September 4, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
EUGENE FREDERICK WUNSCHEL JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Sac County, Adria Kester, Judge.
A defendant asks for resentencing before a different district court judge.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney
General, for appellee.
Considered by Tabor, C.J., and Greer and Schumacher, JJ. 2
TABOR, Chief Judge.
Eugene Frederick Wunschel Jr. (Fred) and his brother John Wunschel
entered Alford pleas1 to lascivious acts with the same child. In both plea deals,
the State agreed to make no sentencing recommendation. The district court set
back-to-back hearings for the brothers. At John’s sentencing, the State presented
evidence from the victim’s custodian detailing the child’s struggles since the
molestation—possibly breaching its agreement to stand silent. At the start of
Fred’s hearing, his counsel asked the judge to recuse herself based on the
prosecutor’s conduct in John’s case. The judge declined and sentenced Fred to
an indeterminate ten-year prison term. Fred appeals, asking for resentencing
before a different judge.
Because the record reveals no abuse of discretion by the court in refusing
to recuse, we affirm.
I. Facts and Prior Proceedings
The victim told a child protection interviewer that Fred and John started
having sexual contact with her when she was thirteen years old. After further
investigation, the State pursued charges against both brothers.
In a trial information separate from his brother’s case, the State charged
Fred with two counts of sexual abuse in the third degree (in violation of Iowa Code
section 709.4 (2021)) and one count of lascivious acts with a child (in violation of
section 709.8(1)), all as second or subsequent offenses and all class “A” felonies.
Fred accepted a plea offer from the State to the reduced charge of lascivious acts
1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“[A]n express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty.”). 3
with a child (in violation of Iowa Code section 709.8(1)(a), a class “C” felony). The
agreement anticipated that he would enter an Alford plea. In return, the State
agreed to dismiss the two other counts. The State also agreed to “remain silent”
at sentencing as to all applicable discretionary terms and provisions. The court
accepted the plea, finding it was knowing and voluntary and had a factual basis.
Fast forward to sentencing. At the beginning of the hearing, Fred’s attorney
made the following record:
Out of an abundance of caution, Your Honor—and I don’t do this lightly, Judge—I feel like I’m compelled to move the court to recuse itself from my client’s sentencing. While the defendants were not charged together, their facts and circumstances did intertwine. They are involving the same victim. Their plea offers and sentencing recommendations mirror each other. And as such, Your Honor, pursuant to our plea agreement, the State is to stand silent, which I expect the State will do related to any recommendations. I also believe that that means the presentation of evidence.
Counsel explained that he attended John’s hearing, at which the victim gave an
impact statement—as allowed under the code. But then “the current custodian
presented a rendition of what has happened since.” Counsel asserted that the
custodian’s statement violated the State’s promise to stand silent at sentencing.
[E]ven if that statement doesn’t occur in our proceeding, I feel the need to ask the Court for that recusal. Because under Iowa caselaw, when there’s a violation of the plea agreement related to standing silent at sentencing, it is incumbent upon the defense attorney to bring that to the court’s attention and then ask for sentencing in front of a different judge. I believe the same would apply here, Your Honor, because we have the same victim and similar circumstances.
Counsel argued that it was impossible to “un-ring the bell related to the statement
made by the current custodian as to everything that this young lady has endured
since this time, which I’m not making light of in any way, shape, or form, and would 4
certainly apply similarly to my client in the court’s consideration.” So defense
counsel asked that Fred be sentenced in front of a different judge.
When the court asked for clarification, defense counsel acknowledged that
he was not alleging a violation of the plea agreement in Fred’s case. From there,
the court rejected the call for recusal,
The facts of this case are such that no violation of the plea agreement has been alleged by this Defendant. The court routinely handles matters regarding the same victim in different cases and my job is to evaluate the information that’s presented to me for each individual Defendant. I do not have blanket rules on how I sentence somebody.
After considering all the pertinent sentencing factors, including the nature of the
offense and the harm to the victim, the court imposed a prison term not to exceed
ten years. Fred appeals. 2
II. Scope and Standard of Review
We review a district court’s refusal to recuse for an abuse of discretion.
State v. Trane, 984 N.W.2d 429, 433 (Iowa 2023). We reverse only if the court
rests its decision on untenable grounds or acts unreasonably. Id. at 434.
Judges must disqualify themselves from any proceeding in which their
impartiality might reasonably be questioned. Iowa Code of Judicial Conduct
R. 51:2.11(A); see also Iowa Code § 602.1606(1)(a) (“A judicial officer is
disqualified from acting in a proceeding . . . if . . . [she] has a personal bias or
prejudice concerning a party.”).3 The test is objective: would a reasonable person
2 Because Fred challenges the sentencing procedure, rather than the plea itself, we find good cause to hear his appeal. See State v. Patten, 981 N.W.2d 126, 130 (Iowa 2022). 3 Recusal and disqualification are interchangeable terms. Iowa Code of Judicial
Conduct R. 51:2.11 cmt. 1. 5
knowing the facts doubt the judge’s impartiality? State v. Mann, 512 N.W.2d 528,
532 (Iowa 1994). Impartiality means the lack of bias or prejudice for or against a
party and the commitment to keeping an open mind on issues before the court.
Iowa Code of Judicial Conduct, Terminology. The party seeking recusal must
show that the judge’s “alleged bias and prejudice . . . stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the
judge learned from participation in the case.” Carter v. Carter, 957 N.W.2d 623,
644 (Iowa 2021) (quoting State v. Bear, 452 N.W.2d 430, 435 (Iowa 1990)).
III. Analysis
Fred contends that because the State “breached the plea agreement” at his
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 23-1349 Filed September 4, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
EUGENE FREDERICK WUNSCHEL JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Sac County, Adria Kester, Judge.
A defendant asks for resentencing before a different district court judge.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney
General, for appellee.
Considered by Tabor, C.J., and Greer and Schumacher, JJ. 2
TABOR, Chief Judge.
Eugene Frederick Wunschel Jr. (Fred) and his brother John Wunschel
entered Alford pleas1 to lascivious acts with the same child. In both plea deals,
the State agreed to make no sentencing recommendation. The district court set
back-to-back hearings for the brothers. At John’s sentencing, the State presented
evidence from the victim’s custodian detailing the child’s struggles since the
molestation—possibly breaching its agreement to stand silent. At the start of
Fred’s hearing, his counsel asked the judge to recuse herself based on the
prosecutor’s conduct in John’s case. The judge declined and sentenced Fred to
an indeterminate ten-year prison term. Fred appeals, asking for resentencing
before a different judge.
Because the record reveals no abuse of discretion by the court in refusing
to recuse, we affirm.
I. Facts and Prior Proceedings
The victim told a child protection interviewer that Fred and John started
having sexual contact with her when she was thirteen years old. After further
investigation, the State pursued charges against both brothers.
In a trial information separate from his brother’s case, the State charged
Fred with two counts of sexual abuse in the third degree (in violation of Iowa Code
section 709.4 (2021)) and one count of lascivious acts with a child (in violation of
section 709.8(1)), all as second or subsequent offenses and all class “A” felonies.
Fred accepted a plea offer from the State to the reduced charge of lascivious acts
1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“[A]n express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty.”). 3
with a child (in violation of Iowa Code section 709.8(1)(a), a class “C” felony). The
agreement anticipated that he would enter an Alford plea. In return, the State
agreed to dismiss the two other counts. The State also agreed to “remain silent”
at sentencing as to all applicable discretionary terms and provisions. The court
accepted the plea, finding it was knowing and voluntary and had a factual basis.
Fast forward to sentencing. At the beginning of the hearing, Fred’s attorney
made the following record:
Out of an abundance of caution, Your Honor—and I don’t do this lightly, Judge—I feel like I’m compelled to move the court to recuse itself from my client’s sentencing. While the defendants were not charged together, their facts and circumstances did intertwine. They are involving the same victim. Their plea offers and sentencing recommendations mirror each other. And as such, Your Honor, pursuant to our plea agreement, the State is to stand silent, which I expect the State will do related to any recommendations. I also believe that that means the presentation of evidence.
Counsel explained that he attended John’s hearing, at which the victim gave an
impact statement—as allowed under the code. But then “the current custodian
presented a rendition of what has happened since.” Counsel asserted that the
custodian’s statement violated the State’s promise to stand silent at sentencing.
[E]ven if that statement doesn’t occur in our proceeding, I feel the need to ask the Court for that recusal. Because under Iowa caselaw, when there’s a violation of the plea agreement related to standing silent at sentencing, it is incumbent upon the defense attorney to bring that to the court’s attention and then ask for sentencing in front of a different judge. I believe the same would apply here, Your Honor, because we have the same victim and similar circumstances.
Counsel argued that it was impossible to “un-ring the bell related to the statement
made by the current custodian as to everything that this young lady has endured
since this time, which I’m not making light of in any way, shape, or form, and would 4
certainly apply similarly to my client in the court’s consideration.” So defense
counsel asked that Fred be sentenced in front of a different judge.
When the court asked for clarification, defense counsel acknowledged that
he was not alleging a violation of the plea agreement in Fred’s case. From there,
the court rejected the call for recusal,
The facts of this case are such that no violation of the plea agreement has been alleged by this Defendant. The court routinely handles matters regarding the same victim in different cases and my job is to evaluate the information that’s presented to me for each individual Defendant. I do not have blanket rules on how I sentence somebody.
After considering all the pertinent sentencing factors, including the nature of the
offense and the harm to the victim, the court imposed a prison term not to exceed
ten years. Fred appeals. 2
II. Scope and Standard of Review
We review a district court’s refusal to recuse for an abuse of discretion.
State v. Trane, 984 N.W.2d 429, 433 (Iowa 2023). We reverse only if the court
rests its decision on untenable grounds or acts unreasonably. Id. at 434.
Judges must disqualify themselves from any proceeding in which their
impartiality might reasonably be questioned. Iowa Code of Judicial Conduct
R. 51:2.11(A); see also Iowa Code § 602.1606(1)(a) (“A judicial officer is
disqualified from acting in a proceeding . . . if . . . [she] has a personal bias or
prejudice concerning a party.”).3 The test is objective: would a reasonable person
2 Because Fred challenges the sentencing procedure, rather than the plea itself, we find good cause to hear his appeal. See State v. Patten, 981 N.W.2d 126, 130 (Iowa 2022). 3 Recusal and disqualification are interchangeable terms. Iowa Code of Judicial
Conduct R. 51:2.11 cmt. 1. 5
knowing the facts doubt the judge’s impartiality? State v. Mann, 512 N.W.2d 528,
532 (Iowa 1994). Impartiality means the lack of bias or prejudice for or against a
party and the commitment to keeping an open mind on issues before the court.
Iowa Code of Judicial Conduct, Terminology. The party seeking recusal must
show that the judge’s “alleged bias and prejudice . . . stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the
judge learned from participation in the case.” Carter v. Carter, 957 N.W.2d 623,
644 (Iowa 2021) (quoting State v. Bear, 452 N.W.2d 430, 435 (Iowa 1990)).
III. Analysis
Fred contends that because the State “breached the plea agreement” at his
brother’s sentencing hearing, his own sentencing hearing should have been
rescheduled before a different judge. Fred recognizes that the breach did not
occur in his case. But he emphasizes that the two cases “involved the same
prosecutor, the same judge, the same victim, and interrelated underlying facts.”
We reject Fred’s contention for two reasons.
First, John’s sentencing is not part of our record. See Iowa R. App. P. 6.801
(defining composition of record on appeal); State v. Washington, 832 N.W.2d 650,
655–56 (Iowa 2013) (noting limited authority of appellate courts to take judicial
notice of court records in different proceedings without the agreement of both
parties). All we have is trial counsel’s argument that the State violated the plea
agreement in that related case by failing to stand silent and offering a statement
from the child’s custodian. On appeal, Fred argues that the prosecution “did not
deny that it had breached the plea agreement in the other case.” But neither did
the prosecution concede a violation. Instead, the prosecutor argued that the 6
sentencing court was “capable of not considering evidence if it is, in fact, evidence
and not a presentation of a victim impact statement.”
True, the accused is denied the benefit of his bargain when the prosecutor
expresses material reservations about the agreed-to recommendation. See
Patten, 981 N.W.2d at 133−34. But it’s not clear that is what happened in John’s
case. Fred’s counsel observed that the prosecutor presented information about
the victim’s situation despite agreeing to take no position on John’s sentence. Yet
that presentation did not automatically breach their plea agreement. We do not
equate standing silent on sentencing recommendations with “offer[ing] no
information of any kind at sentencing.” State v. Smith, No. 04-0241, 2004 WL
2296708, at *1 (Iowa Ct. App. Oct. 14, 2004).
And second, even if we assume the State breached the plea agreement in
John’s case, Fred cannot show the district court abused its discretion in refusing
to recuse so that he could be sentenced by a different judge. When we dissect
Fred’s claim, we find an amalgam of recusal and reassignment theories. “Although
the line can grow fuzzy in individual cases, there are a number of important
differences between recusal and reassignment.” Toby J. Heytens, Reassignment,
66 Stan. L. Rev. 1, 8 (2014) [hereinafter Heytens]. On the one hand, “the whole
point of the recusal statutes is that certain judges should not be deciding certain
cases in the first place.” Id. at 10. When trial judges do not recuse from cases
when their impartiality might reasonably be questioned, an appellate court may set
aside their decisions to remedy that failure to recuse. Id. A recusal “decision is
inherently backward looking: the trial court judge is removed to remedy the failure
to recuse that occurred in the past.” Id. 7
On the other hand, in reassignment cases, “the error that triggers appellate
reversal is not the trial court judge’s failure to remove herself from the case.” Id.
Instead, it is a non-recusal-related error—such as the prosecutor reneging on a
plea agreement—that prompts the appellate court to assign the case to a different
judge on remand. See State v. Lopez, 872 N.W.2d 159, 181 (Iowa 2015)
(reiterating that remedy for State’s breach of a plea agreement is resentencing by
a different judge with the prosecutor obligated to honor the plea agreement and
sentencing recommendation). Appellate courts “intend no criticism” of the trial
court by this action. Id. (citation omitted). Rather, “reassignment is inherently
forward looking: the original trial court judge is removed not to remedy some past
error, but rather to reduce the risk of undesirable consequences going forward.”
Heytens, at 10.
Fred essentially contends the district court should have done its own
appellate review by reassigning his case to a different sentencing judge after the
prosecution allegedly breached its plea agreement in John’s case. But the
question before the district court was recusal not reassignment. And this record
does not show that the district court harbored any bias toward Fred stemming from
an extrajudicial source. See State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976)
(explaining that “evidence presented in the trial of a prior cause” is not considered
extrajudicial). We find no abuse of discretion in the sentencing court’s denial of
the motion to recuse.